Month: November 2013

The Attorney General of the Court of Justice Cruz Villalón has rendered an opinion regarding the compatibility of web-blocking measures with EU law (here the press release). This opinion is expected to warm-up the never-ending debate how to tackle piracy in the internet. In fact, in several European countries web-blocking is imposed on ISPs (Internet access providers) as an ordinary measure to prevent illicit activities by Internet users in different areas, such as online piracy, paedoporno material, counterfeiting, consumer protection, ecc.

While various European decisions have already considered the matter of online copyright enforcement (in particular, the famous SABAM cases originating from Belgium), this is the first time the ECJ is dealing specifically with web-blocking.

It is arguable whether the opinion of the Attorney General may be seen as a step in favor of copyright holders or, by contrast, in favor ISP/libertarians/consumers. Such evaluation may vary because web-blocking practices throughout UE vary considerably from country to country and therefore the views of the Attorney General, should they be confirmed by the ECJ, may have different implications.

On one side, rights-holders will welcome the fact that opinion recognizes that the web-blocking instrument is not per se incompatible with European law. On the other side, however, the opinion lists series of restrictions and guarantees suggesting that courts or authorities should be very cautious when considering the practical implementation of this measure. In other words, the solution indicated by the Attorney General will create concerns in those countries (for instance Germany and Austria) were web-blocking is not normally used, but it will have the opposite effect in countries where web-blocking is common practice (such as Italy and UK). In the latter countries the current web-blocking practice and jurisprudence should be likely revised.

The merits of the case concerned a web-blocking measure ordered by an Austrian judge upon local ISPs (including the cable operator UPC) in order to prevent access to a portal (kino.to) accused to distribute content in violation of copyright law. The Austrian judge imposed a combination of DNS and IP addresses blocks, while recognizing that such measures could be easily circumvented by users. UPC challenged the blocking measure and the case was brought to the attention of the European court to verify whether the Austrian legislation, allowing a national courts to block access to website as a measure to prevent infringement of copyright, was compatible with European law (namely the Copyright Directive 2001/29/EC and the Electronic Commerce Directive 2003/31/EC).

Firstly, the European Attorney is suggesting to the ECJ that access providers should be considered as “intermediaries” and, as such, could be subject to the relevant legislation in the matter of fights against online piracy. Secondly, he believes that, under certain conditions, European law allows – but it does not prescribe – national courts to force ISPs to block access to websites to prevent online piracy. However, the practical recourse to this measure should be subject to various caveat and therefore the national judge should take care of the following:

– the blocking measure must be balanced and take into account primary interests of other parties, such as fundamental rights, freedom of expressions, privacy, non-monitoring obligation, freedom of business ecc, which may even restrict and limit the actual enforcement of copyright law. As a consequence of that, national judges may even come to the conclusion that, in the concrete circumstances, web-blocking is an excessive and inadequate measure. The respect of privacy, in this context, will become particularly critical. EDPS (the European Data Protection Supervisor) has recently noted that network management practices, including blocking measures, should be balanced and proportionate also with regard to privacy; one should even wonder whether a blocking measure based on DPI (deep packet inspection) may be tolerated;

– the blocking measure must be specific and it cannot consist in the obligation to generically prevent access to a certain website. This is particularly relevant in countries like Italy where judges are used to impose web-blocking measures as a kind of “result obligation”, i.e. ISPs are obliged to prevent access to the locked website at all costs and conditions;

– the measure must be proportionate, i.e. should not prescribe more than what is necessary to achieve a certain objective. This is particularly relevant for cases where blocking of a website would impede access to both licit an illicit content (frequently with social networks and platforms);

– the blocking measure must be imposed by a court or should be subject to strict judicial review.

As stated above, the conditions envisaged by the Attorney General are quite strict and, if approved by the European court, will force various members States to review their tolerance to web-blocking. Nevertheless, some parts of the conclusion seem to help the recourse to web-blocking:

– even if web-blocking may be easily circumvented, such measure remains adequate in the eyes of the Attorney General. It is interesting to whether this evaluation will be finally retained by the European court;

– web-blocking may be imposed even if involve some costs upon ISPs. However, since the ECJ in previous cases (Sabam cases) have banned costly measures imposed on operators to protect third parties’ rights, it will be interesting to see how the final decision will elaborate this question.

The European Commission is soon to deliver an opinion about a proposal of Italian regulator AGCOM regarding the enforcement of copyright rules in the Internet. The proposed measures were notified to Brussels in September and the standstill period is due to expire on December 3, 2013. However, the content and the tenor of the Commission’s opinion will be decisive for the success of the proposed reform. Fact is, a similar legislative initiative aborted in 2011 following a very negative opinion of the Commission’s offices.

If the initiative of AGCOM goes through, it will create an important precedent in Europe, since the enforcement of copyright in the Internet is normally carried out by courts, not by administrations.

ISPs, consumers, libertarians and experts have vigourosly contested AGCOM’s proposal because it could affect freedom of speech as well as business rights. In particular, they challenge the modality whereby the Italian regulator would supervise and tackle copyright infringements in the Internet by way of orders of removal and blocking. By contrast, rightshodlers associations as well as the Italian Collecting Society SIAE have supported the initiative.

Remarkably, the matter has overcome the natural boundaries of a stakeholders debate and has become a subject for discussion at very high institutional levels. Various members of the Italian Parliament (including the president of the Chamber Laura Boldrini) have questioned the competence of AGCOM in regulating this matter and observed that only the legislator, not the regulator, should fix limits and guarantees of civil freedoms. The Foreign Affairs Minister Emma Bonino has also criticized the regulator’s initiative. Lastly, a mediatic bomb came from Frank La Rue, UN special rapporteur for protection and promotion of freedom of opinion and expression. The UN officers, during a series of meeting in Italy in mid-November, declared in a report the following:

“The issue of intellectual property in the context of freedom of expression has been raised in more than one meetiing in the course of my visit. All regulations governing constitutional rights, especially if they relate to freedom of expression, should be approved by the Parliament. As an independent authority, the NRA has the sole responsibility to apply the provisions in force provided by the law. It is only for this reason that the NRA has the power to adopt their own administrative regulations.

One reason for concern is the role of AGCOM in the definition of sanctions in intellectual property, because this is a prerogative of the Parliament. Even if the NRA can apply by virtue of law certain restrictions to online content, the removal of an online content should however be established by the court in each case”

In the following meeting with journalist, Mr. La Rue expressly stated that the reform envisaged by AGCOM may be against the Italian Constitutional Chart.

The proposal of AGCOM has been notified to the European Commission in compliance with Directive 98/34.

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Here a summary of the controversial AGCOM draft decision:

The draft regulation numbers 19 Articles, divided into five Chapters, and two Annexes.

Chapter I gives the definitions used (art. 1) and the regulation’s purpose and scope of application (art. 2). It is specified that the new rules will not apply to downloaders and peer-to-peer programmes.

Chapter II lists the measures (art. 3) taken by the Authority to encourage the development, promotion and awareness of digital works, and establishes a committee (art. 4) to develop and protect the legal offer of digital works, under which scope possible self-regulatory solutions may be discussed with the aim to support the development of digital works.

Chapter III regulates the procedure aimed at ascertaining and eliminating breaches of copyright or connected rights occurring on electronic communication networks in compliance with the national decree implementing Directive 70/2003/EC on electronic commerce, namely Legislative Decree of April 9, 2003 n. 70.

The envisaged procedure works in two stages:

– firstly, if a self-regulatory procedure of notice & take down has been duly put in place by the web site manager (i.e. it has been previously notified to the Authority), the claimant shall notify the latter asking for the removal of the illicit content following that procedure (art. 6);

– in the absence of a self-regulatory procedure, or when the illicit content is not removed in any case, then the claimant may notify the Authority about the infringement (art. 7).

The start of the process with the Authority is notified to the claimant, the uploader and the website manager (if traceable), and to service providers specifically identified in the claim (art. 8). The parties may file counterclaims. In case the recipient spontaneously makes, within 3 days from the communication, the necessary adjustments, the proceeding can be dismissed.

The proceeding with the Authority may last up to 45 days. If, upon completion of the proceedings, the Authority ascertains that a breach has been effectively committed, it shall order the concerned service provider to either selectively remove the illicit content or to disable access to it (i.e. web-blocking). While taking the decision, the Authority shall take into account the principles of graduality and proportionality, the gravity of the violation as well as the localisation of the server (art. 9). Compliance to the Authority’s decision must be ensured within 3 days.

A shorten procedure is envisaged by the draft regulation for massive violations (art. 10).

Chapter IV (arts 11-15) provides for similar procedures aimed at ascertaining and eliminating breaches of copyright or connected rights with regard to audiovisual and radio programmes pursuant to Directive 44/2010/EC on audiovisual media services.

Chapter V contains final provisions and, inter alia, a clause reserving to the Authority the right to amend the regulation.

Annexes 1 and 2 are the “Application Forms” to be compulsory used to notify the Authority respectively in accordance with Art. 7, paragraph 2 (digital works) and Art. 12, paragraph 1 (audiovisual or radio programmes).

Today the European Parliament published the report of the ITRE committee regarding the Connected Continent regulation proposed by Neelie Kroes, commissioner for the Digital Agenda, on September 11, 2013. The report constitutes a kind of counter-proposal to the Kroes’ attempt to substantially review the current framework for electronic communications. The result is not very good for the Commission: the Parliament intends to delete most of the proposals or to postpone them to an ad hoc reform to take place after the 2014 elections – in such a case, however, a new proposal could not take place before mid-2016, which means approval not before 2018. In other words, it is clear that the European Parliament, despite the commitment to vote on a first reading in April 2014, does not intend to bring the Commission’s proposal to a real conclusion under the current legislature. Nevertheless, the European Parliament is already defining the starting-point for the future review of the European Directives:

“The Commission shall perform a comprehensive evaluation and review of the entire regulatory framework for electronic communications, and shall submit a report with appropriate proposals to the European Parliament and the Council by 30 June 2016 in order to allow sufficient time for the legislator to analyse and debate the proposals properly”.

Amongst the several significant changes to the Commission’s proposal brought by the European parliament, I would highlight the following:

– Dramatic reform of Kroes’ roaming proposal: instead of a system of alliences and voluntary agreement to create a kind of “roam like at home”, the Parliament intends to definitively delete roaming surcharges by June 2016;

– Deletion of the single authorisation regime & replacing it by a standardised template notification to BEREC;

– Deletion of the Commission’s veto powers – NRAs will be more than happy;

– Deletion of most controversial access rules, such as Recital 38 (on the competitiveness of the retail market in the presence of two fixed NGA networks) and the entire section on the European virtual access products (deleting both the harmonised access products and Article 18 and referring this issue back to the Commission for the Framework review);

– Spectrum: new provisions on spectrum trading & minimum duration of all spectrum licences to be 30 years or longer (permitting also indefinite); this is impressive, by the way.

The rapporteur of the ITRE Committee, Pilar del Castillo, member of the PPE and with a long experience in the telecom sector, commented the report with a press release (in Spanish).

The committee IMCO (consumers) and CULT (culture) have rendered their opinion on the Connected Continent proposal. They are also quite critical, especially the IMCO’s one regarding the NN provisions (my next post will be about this subject). The CULT opinion is here.